Gun Control and the Limits of Halakhah

Since the shooting in Connecticut, Jews have played a prominent role in the push for more gun control, citing Jewish authority to support their stance. There are also Jews on the other side of the debate, and some in between; they, too, cite Jewish sources. Can Jewish law truly provide guidance in preventing further massacres in America?

Let us first establish the principles that guide Jewish law on violence and self-defense. The Torah states, “Take utmost care and watch yourself scrupulously,” (Deuteronomy 4:9) and commands a homeowner to build a railing around his roof “lest you bring bloodguilt on your house if anyone should fall from it.” (22:8) From these verses, the Sages derived the rules that a person should not keep wild dogs, shoddy ladders, or other dangerous objects in his home lest they cause bloodshed (Bava Kamma 15b) and should not sell weapons to anyone who he fears will use them inappropriately (Avodah Zarah 15b). Thus, if a careless gun salesman unintentionally contributes to illicit violence, he is guilty of “placing a stumbling block before the blind.” (Choshen Mishpat 427:7) While it may be true that “guns don't kill; people do,” the responsible “people” under Jewish law are not only individuals who handle weapons badly but also individuals who provide them with those weapons.

Thus, after John Hinkley shot President Reagan with a handgun in 1982, Rabbi J. David Bleich wrote a powerful open letter to the Jewish pawnshop owner who unknowingly sold Hinkley that handgun:

Jews ought to be in the vanguard of those seeking to impress upon our legislators that handguns are indeed “stumbling blocks” which must not fall into the hands of the “blind”. . . . [I]t is precisely because the “morally blind” criminals are disposed to crime that Judaism teaches that it is forbidden to provide them with the tools of their trade.

Yet only indiscriminate sales of weapons are prohibited; sales to responsible people seeking self-protection remain permissible. Indeed, the Torah not only allows people to kill intruders in their homes but actually mandates that potential victims or even bystanders kill a person seeking to commit murder (rodef): “Do not stand by the bloodshed of your fellow.” (Leviticus 19:16) The question facing society is how to regulate weapons so as to balance these rules most effectively and to maximize the single value that underlies them: keeping people safe.

Jewish sources have addressed similar issues of balance in two different contexts: “cities of refuge” and fierce dogs. As for the first, the Torah mandates the establishment of cities of refuge—communities to which individuals who have killed, but are not fully culpable of murder, may flee for legal protection from a “blood avenger,” an enraged member of the victim's family. What rules should govern such cities, the Talmud asks, given the backgrounds of some of the inhabitants and the standing threats to their lives? One might argue that the values described above dictate strict gun control laws to prevent any sale of weapons or hunting devices that might fall into the hands of a blood avenger or an unsavory refugee. This was precisely the position of the Sage Rabbi Nehemiah.

Yet the majority of Sages disagreed. Instead, they argued that weapons sales should be allowed—but no traps should be laid or nooses knotted, “so that the blood avenger should not have a path there.” This statement is cryptic; but in the 19th century, Rabbi Yitzhak Chajes offered the most likely explanation: with snares readily available, one can make a death seem accidental (Siah Yitzhak, Makot). Without them, a blood avenger must try to kill through more open means—and is more likely to get caught.

Still, why not ban weapons sales anyway? Though the Talmud and Chajes don’t explain, it appears the Sages believed that a ban would not prevent a blood avenger from acquiring weapons—but would prevent law-abiding residents from buying weapons for their own protection in an area prone to violence.

In this debate, we see two reasonable positions producing very different policies, even though the Sages shared the same goal: preventing violence. Thus, reasonable people may disagree about the appropriate policy for a specific context.

Cities of refuge ceased to exist after Biblical times. Thus, this particular debate did not much engage later decisors and do not provide much evidence of how particular weapons control policies actually worked. Fierce dogs, however, still exist. The talmudic Sages did not like dogs, especially dogs that attacked strangers. The aversion might have stemmed partly from the association of dogs with Egyptian paganism but mainly reflected the Sages’ belief that dogs were dangerous (Bava Kamma 15b): even their barking and growling could terrorize people to the point of causing miscarriages. They also feared that dogs might deter neighborly intermingling or keep poor people from seeking assistance (Maharsha, Shabbat 63a). Thus, they mandated that a person who owns a fierce dog must keep it leashed (Bava Kamma 79b).

However, they provided that in dangerous areas like border cities, one can unleash a dog at night, when most people have gone to sleep (Bava Kamma 83a). Scholars have debated the scope of this exception. In 13th-century Germany, some asserted that since Jews lived among hostile neighbors, any Jew could own a dog for protection—and keep it unchained day and night (Shiltei Giborim). In 16th-century Poland, Rabbi Moshe Isserles agreed, noting that this was the contemporary practice among Jews—though Isserles added that if the dog might attack innocents, it had to be kept chained.

But Isserles’ cousin and countryman, Rabbi Shlomo Luria, condemned the exception altogether, arguing that the outside threat was not so great and the potential for accidents from keeping a dog around children and others was much greater. In the next century, Rabbi Meir Eisenstadt argued that dogs should not be allowed generally but only when needed to protect large groups of people in specific areas (Shu"t Panim Meirot 2:133). In the 18th century, Rabbi Yaakov Emden proposed a different compromise: one dog per home—or, since some properties might require greater protection, “One may not possess any more than absolutely necessary.” Applying these principles to outlying towns in contemporary Israel, Rabbi Pinchas Zivchi ruled as follows: If one fears burglary, the dog should be visibly chained during the day, with a warning sign posted; the dog can be released at night, but only within a closed courtyard. If one fears terrorist attacks, the dog can be kept loose at all times—but only if safeguards can be taken to prevent it from harming innocent bystanders.

Substitute handguns for fierce dogs, and you get something like the following debate:

“Guns are dangerous; no private citizen should own one.” (Bava Kamma15b) “No, they are necessary for protection at night—but only in violent areas.” (Bava Kamma 83a) “Today, every area is violent; so, we need constant protection.” (Shiltei Giborim) “This makes sense and agrees with current practice, but people should properly secure the guns in their homes.” (Isserles) “That's a terrible idea: guns in the house are more likely to harm innocents than to protect against attackers.” (Luria) “Let's compromise: let citizens carry weapons, but only in significant locations of concern, like schools.” (Eisenstadt) “Or limit people to one gun, or the absolute minimum necessary.” (Emden) “No, the problem is more complex; we need differing rules for different types of people, guns, places, and circumstances.” (Zivchi)

Sound familiar?

Admittedly, guns are not dogs, because guns are controlled by rational beings who can use them cautiously or recklessly. Nonetheless, the diversity of rabbinic opinions on the proper regulation of dangerous but protective canines shows that reasonable people, even those sharing Jewish values regarding violence and self-defense, can disagree about gun control. Another factor complicates the situation still more: the positions of the Sages and scholars were not formed in a vacuum but related to their particular circumstances. How should our principles apply in the United States—or Australia, Israel, or any other country? America, for instance, is no longer building a new society. Instead, its society is marked by deep fear of violent attacks by gangs or deranged individuals; 300 million firearms in the hands of private citizens, legally or otherwise; a strong culture and history allowing the use of hunting and other recreational weapons; and a constitutional right to bear arms—which, though its meaning is contested, cannot be ignored. And that’s just for starters. Each of these factors could reasonably change, in a liberal or conservative direction, the way people might think about gun policy in America, even if they might have taken an alternative approach under different circumstances.

Can halakhah provide authoritative solutions to the American dilemma? No. Still, we might heed the wise statement once made by the late Rabbi Haim David Halevi, Chief Rabbi of Tel-Aviv, about foreign policy: even when halakhah cannot provide the answers, it still may serve as a guiding light, promoting the critical values that direct policy makers toward a better resolution. The same is true for gun control.

Rabbi Shlomo M. Brody teaches at Yeshivat Hakotel, writes a column for the Jerusalem Post, and directs the Tikvah Israel Seminars for post-high school students. Facebook.com/RabbiShlomoBrody.

Talk about muddying the waters. There is absolutely no doubt that the Sages considered the use of dangerous weapons (and therefore their ownership) to be a bad thing that should be avoided if possible. They allowed leniency in order to adress the reality of their times (and perhaps ours) but there is no doubt that owning a weapon is not the desired outcome. Judaism has always been anti weapon and anti hunter as well.

This is very unlike the glorification of the 2nd amendment in the U.S. It is not possible to come up with pro-gun position from the sages. Rather it is possible to come up with some specific leniencies in a generally prohibitive worldview.

Thanks for your comment David.
I agree with you that the glorification of the 2nd Amendment is foreign to Jewish thoughts (a point which I will further elaborate on in a forthcoming essay). As I stated, the key value should be how to keep people safe with a balance between reducing the threat posed by guns while still allowing for self-defense.
The major point I made was that even when people share those values (which are not necessarily shared by many American policymakers), one can disagree on what the best way is to achieve that goal, especially given the complexities of the given reality.
It is simple to quote Isaiah 2:4 and therefore to say we should ban assault weapons because we don't like guns and really would prefer to ban handguns as well. But what if that policy would, in a given area, actually increase violence? (I happen to think that banning assault weapons is a good idea, but that is besides the point.) I think the Sages were very much aware of Isaiah 2:4, but nonetheless knew well that we had to work within a given reality to reduce violence - and the means of reaching that goal is a matter of which reasonable people can disagree.

NRA, gun owners, gun dealers, gun sellers must be held accountable and they are responsible for their negligent use of those guns, even if those guns fall into the hands of who they call lunatics, criminals, or anyone that would use a weapon for something illegal, same as if they sell guns to known terrorist. Those who sponsor, lobby, and promote use of guns must secure their guns. They are responsible for securing those guns they sponsor, lobby, and promote and this needs to be a strict liability because of the potential of bodily harm and fatality is known.

And Doctors and psychiatrists, and parole boards should be held responsible for those that they 'release upon the public'. I'd also add high school teachers and high school principals to that list.

How many times have you heard some teacher say 'I knew there was something wrong with that boy...' ?
I'd guess about the same number of times you've heard a psychiatrist say he shouldn't be held accountable for the bad activity of one his patients.

James - I agree. Especially since many gun advocates don't prioritize the values mentioned in this essay, and instead promote an intrinsic worth or right to owning guns for others purposes, such as recreation.

But I also agree that policy makers are responsible to provide means of self-defense, especially in an environment where there are a lot of bad people out there with a lot of guns.

So what's the answer?... Reasonable people can disagree about the answer, with the goal of halakha to provide the values that should be considered in coming to that policy decision.

While interesting, the Rabbi Brody's analysis was unfortunately superficial. To pick one example, the key safety issue with an unsound ladder is that when you pick it up to use it as planned, it will not perform as expected. Couldn't that be construed to prohibit poorly maintained firearms, or even keeping an UNLOADED gun that, when taken up to use, fails to work when you need it in a life and death situation?
The case of dangerous dogs and when they might be unchained is, as mentioned a very poor analogy to firearms though is a much more exactly applicable to traps and, today, robotic weapons that can operate autonomously.

Also, two potentially useful sources were neglected here. Consider the case of David haMelekh as a young man. He possessed, and practiced enough to gain considerable expertise in the use of, the firearm of his day. He used it to protect helpless creatures from predators, and when the time came, was able to use his skill in a much larger cause.
He would not have been able to do so without much time spent gaining the skill, nor would he or his charges have been as safe.
The Torah merely notes the facts of his weapon and skill with it in passing, as a matter of course. No big deal to own a weapon for a person living or working in a dangerous situation.
And from the Chumash itself, in Shemot 22 we see the that when a householder kills someone breaking in at night there is no blood-guilt. Why? it is intrinsically case of self-defense, because to break in in that manner implies a depraved indifference to human life on the part of the criminal. We also see that the Torah assumes the right to defend one's life and that of one's family.
Finally, some of the positions of authorities stated above are contingent on a correct understanding of what we would describe today as statistical arguments; R' Shlomo Luria, is a good example. And it is simply not true that a firearm in the home is more likely to harm someone in the home than to be used in self-defense except in the case of homes occupied by criminals whose mere possession of the weapon in the first place is already illegal.

I'm surprised that an article like this can be written without mention of the fact that Jews, specifically, have, right up until today, a real interest in protecting themselves from physical (and genocidal) attacks.

David Sher: Well, halakha considers a weapon part of a well-dressed man's outfit, so much so it can be "worn" on Shabbat. And universal conscription and what we'd call "reserve duty" is right there in the Torah...There, you've got the basis of the Second Amendment.

Nachum, halakha of the time indeed allowed for the someone to wear a weapon as a part of well-dressed mans outfit. That is a far cry from considering it to be a desirable outcome. Again, the point is that that sages allowed for leniency because at the time it was common for people to wear weapons on their person as part of an outfit.

In any case, it is clearly not part of a well-dressed man's outfit at this point (although a ceremonial sword might be). Since it is NOT now part of a well dressed man's outfit in the West (rather the opposite in fact), we can now recognize the Sages ideal which is not to wear weapons.

As a secondary point, the reserve duty that you speak of has almost no bearing on the application of the Second Amendment in the U.S. If it did, the Prefatory clause that Scalia speaks of would actually modify the secondary clause implying that only within the framework of a well-regulated militia does the right to bear arms apply.

Again, the main point here is that the sages wished that weapons were not necessary and only allowed them as a sad commentary on the times.

Something missing in the analogy between guns and dogs is that government-owned dogs have never been involved in democide (government mass murder). Because governments periodically go on mass murder sprees with their guns, to the tune of tens of millions of people in the 20th century alone, individuals must have a right to defend themselves against that, which is why we have a Second Amendment.

So, the dog analogy is a poor one.

Commenter David Sher is living in an alternate reality. We often say of the Holocaust "never forget." David Sher has completely and totally forgotten.

To say the issue isn't guns that are made for self-defense, but that the issue is guns that have no place in civilian society other than to kill a lot of people with minimal effort seems to me to be an oxymoron.

All the attributes that make guns "scary" and "evil" in the hands of a criminal are actually useful, desirable, and beneficial in the hands of someone defending against such an attacker. To quote some I read on the subject, "Assault weapons are really good for shoot bad people who are trying to hurt me in order to get them to stop trying to hurt me"

All guns have the ability to be used to kill people. If ever God forbid I find myself in the position of having to defend my life, or the lives of my family, I want the biggest, deadliest, highest powered, greatest capacity weapon I can afford to accomplish that goal. And since Halacha requires me to defend my life, and authorizes me to use lethal force, it is no perversion to say so.

By "Jewish values" and "Jewish ideas," I think you mean "rabbinic values" and "rabbinic ideas." They are not the same. And the more we Jews begin to unravel this age-old confusion between the two sets of perceptions and conclusions, i.e., those distinguishing the rabbis from the rest of us, the better our future is going to look!

What didn't work in the past will not work now. And pretending that "this time it'll be different" is a game we Jews cannot afford to play, since we already know how the game ends. Badly.

Had the "TRIBES" been prevented from having weapons (swords & spears),
by "sword control" and "spear control" there wouldn't be an ISRAEL.
They wouldn't have 'obtained' it.
They couldn't have 'defended' it.
Had there been 'effective gun control' in the 1920's, 1930's, 1940's... there wouldn't be the country of Israel today.

Guns (pistols, rifles, & shotguns), aside from hunting and sport shooting, are self defense weapons.
People need them.
Israel needed them 80 years ago.
Israel needs them today.
Americans, having learned from history, preserved the right to own weapons in the Constitution. The Founding Fathers 'learned from history'.

There is one analogy between the ancient and medieval laws the author mentions and the American law governing modern firearms. Moat of the instances related in the ancient and medieval situations do not exist as such today, and the use of them by analogy, is not solid legal reasoning.

The second amendment upon which American gun ownership law is based had as its model a muzzle loading long-gun which could perhaps fire two or perhaps even three rounds a minute. After all, it had to be loaded with powder, and tamped down with a ramrod. Then, a ball would be tamped down with the ramroad going down the barrel a second time before the gun is ready to fire. And finally one has to lift the gun, aim it with the rudimentary gunsights of the muzzle loader, and hope the flint-lock firing mechanism will work when the trigger is pulled.

Today, the semi-automatic weapons can fire in a fairly accurate manner even at the rate of 30 rounds a minute with a cartridge that sends the bullets more accurately through a rifled barrel with a muzzle velocity of 3,000 ft/sec. In contrast, the balls that were fired from the muzzle-loaders had a much shorter range with a much lower muzzle velocity that could do much less damage to a human being than the modern cartridge. Today, depending upon the size of a magazine, it is possible to fire one hundred rounds before reloading with today's semi-automatic weapons.

Yet, the U.S. courts base all their decisions on the awkwardly stated second amendment as though it, too, came from Sinai.

The real purpose of the 2nd amendment was to provide a bulwark against a tyrannical government, and so the founders protected military grade weapons (the cannon used in the Revolutionary War were privately owned). Muskets were the assault weapons of the day. The 2nd amendment protects the right of the citizens to have the same level of firearms as possessed by the government.

And the 2nd amendment is not awkwardly stated at all. It is crystal clear. "...the right to keep and bear arms shall not be infringed." Seems pretty straightforward to me.

The whole guns/wild dogs analogy is a stretch. As living creatures, wild dogs can act on their own, while as inanimate objects, guns fire only when human hands load them and pull the trigger. Our ancestors owned swords, spears, knives and bows and arrows, and the sources had no problem with that.

Yes, Jerry Blaz, you are right about how much greater the firepower is today, and since the firepower in the hands of government is greater today, the firepower in the hands of the citizenry needs to be greater, as well.

Halacha may not give us an answer to guns, but it does remind us that seriously moral people can differ - an attitude largely absent from the majority of the Jewish community's aversion to any position supportive of guns. We Jews probably almost instinctively are repelled by hunting. After all, we are forbidden to eat meat obtained that way; the bible didn't even like Esau, who was a hunter. So it is hard for us to be sympathetic to the groups withing our society to whom guns are important. Worse, perhaps, is that, over the centuries, we were so often oppressed that we almost nurtured our passivity. After all, if there were Jews who fought back as they were being expelled from country after country, that resistance is missing from any history I've ever seen. And, except for the stories of the Warsaw Ghetto, Chanukah, and Israel's earlier wars, we don't much like the tales of war and self-defense in our own histories. How often does the Purim story include the part where the Jews were saved only by being permitted to defend themselves? No weapons, no self-defense. And we recount the story of our escape from Egypt far more than we do the bloody tales of how we gained the land. So perhaps if we were more cognizant of our almost visceral distaste for the gun owners and advocates in our midst, we would be more capable of having a rational and even sympathetic discussion about gun control.

I am disgusted by any Jew who thinks gun ownership should not be allowed or should be allowed under certain circumstances. There are people out there who want to kill Jews for being Jews and some of you agonize over the ownership of these devices. My answer to anyone especially dhimmis Schummer and Feinstien that no one has power to prevent me from protecting myself from any threat by any means available to me. Anyone who thinks otherwise is a fool and deserves his fate at the hands of his enemies.

This is not about having a gun to protect yourself from invasion. We are talking about unsecured guns falling into the hands of those who commit murder, mayhem, and massacre and the callousness of the NRA militants who think the 2nd Amendment gives them authority to spread the need for guns like a disease and support threats from carry and conceal, and make the USA like the Mideast by pitting one against another with guns like those who vote for democrat candidates are not Americans. The USA is a democracy and not a NRA dictatorship.

I beg your pardon. None of my guns are unsecured, nor have they been used to commit murder mayhem and massacres. I am a proud member of the NRA, and the only ones who are threatened by my carrying concealed weapons are criminals.

The USA is not a democracy. It is a Representative Republic and it has a Bill of Rights which are meant specifically to protect the rights of the individual and minorities from the Tyrannic of the Majority.

And for the record I am also a very proud 3rd generation American whose family has lived and prospered in this great country for over 120 years. Because you disagree with me does not give you the right to cast asperions on my loyalties.